Article excerpt

To serious students of the Constitution, Chief Justice Marshall's discussion of judicial review in Marbury v. Madison (1) was about judicial equality--the power of the courts, co-equal to the similar powers of the legislative and executive departments, to construe and apply the Constitution in the course of their duties. To less serious students of the Constitution, Marbury was about judicial supremacy--the supposedly paramount power of courts to interpret and apply the Constitution in a fashion that binds other legal actors, including the legislative and executive departments and state officials.

Marbury's recent past, dating roughly from Cooper v. Aaron (2) in 1958 through the early 1990s, reflected the triumph of a judicial supremacist revolution (or coup). Persons who doubted judicial supremacy, such as Attorney General Edwin Meese, (3) were generally treated by the legal intelligentsia as something akin to Raelians. Marbury's present, dating roughly from the publication by the Federalist Society of a pamphlet on the debate over interpretative authority in 1992 (4) to the current day, reflects the triumph of the "departmentalist" counterrevolutionaries (or freedom fighters), who maintain that the courts' interpretative powers are no greater than those of other legal actors. The counterrevolution has enjoyed considerable--and one might even say remarkable--success; today, it is difficult to find people who will defend judicial supremacy "with anything other than hot air or bluster." (5)

I have no talent for prognostication, so I will not venture to predict the future direction of this battle. In part, the direction of the debate depends on the reasons for its past course. If, for instance, departmentalism has triumphed in recent years because of the power of its arguments and the eloquence of its advocates, one might expect the departmentalist reading of Marbury to enjoy a long and healthy life. A truly cynical soul, however, might suggest that the legal intelligentsia's acquiescence to departmentalism in the past decade had more to do with the combination of a Democratic President and a conservative-leaning Supreme Court than with the intellectual force of the arguments for departmentalism--in which case Marbury's future is largely in the hands of the electoral college.

In any event, I do not intend here to rehearse the traditional constitutional arguments for departmentalism or the traditional arguments for a departmentalist reading of Marbury. Those arguments have been made at length by many people, including myself. (6) Instead, I want to explore some reasons why a rational person might design a constitution along departmentalist lines--in other words, to suggest why the interpretatively correct reading of the Constitution, and the doctrinally correct reading of Marbury, might also be a normatively sound institutional scheme. I offer this in direct response to the argument advanced by Larry Alexander and Fred Schauer that, even if the Constitution of 1787 is departmentalist as a matter of text, structure, and history, modern political actors should nonetheless accept Supreme Court pronouncements on the Constitution as authoritative. (7) Their case, in brief, is that the settlement function of law, and especially of constitutional law, requires a supreme interpreter, and because the Supreme Court is the best available candidate for that role, legal actors should treat Supreme Court decisions as the final word on constitutional meaning. The argument is explicitly normative and accordingly can only be answered by other normative arguments.

I am uncomfortable treading this normative ground for two reasons. First, I am dubious about the value of normative legal scholarship, even when it comes from such luminaries as Alexander, Schauer, or Lawson. (8) Second, Alexander and Schauer's particular normative argument for judicial supremacy rests, as it must, on the conditions that make the Constitution of 1787 politically authoritative for contemporary actors, and I am not at all persuaded that any such conditions exist. …